State v. Umfleet, 9546
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | HOGAN; All concur, except BILLINGS |
| Citation | 538 S.W.2d 55 |
| Parties | STATE of Missouri, Respondent, v. Keith UMFLEET, Appellant. |
| Docket Number | No. 9546,9546 |
| Decision Date | 03 May 1976 |
Page 55
v.
Keith UMFLEET, Appellant.
Springfield District.
Page 56
Morris A. Shenker, Cordell Siegel, St. Louis, for appellant.
John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
HOGAN, Judge.
A jury found Keith Umfleet guilty of two counts of possession of controlled substances in violation of § 195.020, RSMo Supp.1973. 1 His punishment was assessed at 12 years' imprisonment on count one (possession of morphine) and five years' imprisonment on count two (possession of barbiturates). The sentences have been made to run concurrently. Defendant appeals.
The sufficiency of the evidence to support the verdicts is not questioned, and a brief recitation of the facts will be sufficient. 2 On February 2, 1972, the Cape Girardeau Police Department received a "tip" from an unidentified informant advising them that the defendant, Ronald Wiley and Gary Moore had drugs stored in an apartment on North Ellis Street in Cape Girardeau. The informant further advised the police that the three men were eating, and when they finished they were going to Carbondale, Illinois, to dispose of the drugs. Having ascertained that the apartment described was occupied by Gary Moore and his wife and that the neighborhood fit the informant's description, the police acted on the information. Lt. Stover and Officer Moore of the Cape Girardeau Police Department, together with three deputies of the sheriff's office entered the apartment on North Ellis about 5:30 p. m. on February 2. Drugs were found in the refrigerator. Defendant, Wiley and Gary Moore and his wife were arrested and taken in custody. On March 10, 1972, the Prosecuting Attorney of Cape Girardeau County filed an information charging appellant and Wiley with a) "joint possession of a controlled substance, to-wit: three bottles of morphene sulphate [sic]," and b) "Joint possession of a controlled substance, to-wit: 50 capsules of Fiorinal with Codeine # 1."
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At this trial, Moore testified that he, defendant and Wiley pooled their money to buy the drugs; that he first saw the drugs in a hotel in Indiana, and that defendant was present at the time. The defendant had called a person named Joe. Joe brought the drugs to the hotel. Moore paid Joe for the drugs (three bottles of liquid and a bottle of capsules) with money which belonged to defendant, Moore and Wiley. Moore further testified that defendant had come to the Ellis Street apartment to eat and to "[t]ry to get the drugs out" to Carbondale. Moore freely admitted he was testifying as an immunity witness.
David Hill, a witness for the State, testified that he had seen the drugs at the "apartment on Ellis" "around" February 2. Defendant had told the witness the drugs were his, but "[defendant] had been busted before and he didn't want to have them [the drugs] in his house."
The defendant testified that he had gone to Moore's apartment only to eat with Moore and his wife. He had gone to Indiana with Moore but he denied any knowledge of or connection with the drugs, stating that he had not seen them before he was arrested and taken in custody at Moore's apartment. Other facts will be noticed as relevant to the issues presented.
The first point advanced here is that the trial court erred in permitting amendment of the information at the close of the State's case-in-chief. With deference to counsel, the point is asserted in such "shotgun" fashion that we have difficulty determining what his precise complaint is, but the record shows that Robert C. Briner, a forensic chemist, undertook a qualitative analysis of the three bottles of liquid and the bottle of yellow and red capsules taken from the Moore apartment. Briner testified that the three bottles of liquid were sealed, but a small quantity of material was removed from each bottle with a hypodermic needle. This material was then put on a glass plate with wells in the plate, and a testing compound called marquis reagent was added. The material from the bottles was clear; when the marquis reagent was added the liquid turned purple. Such a reaction indicates the presence of a morphine ring. The solid material contained in the bottles was then extracted from solution and subjected to further analysis by gas and thin layer chromatography processes which were explained in some detail. The finding from this analysis was that "this material [from the three bottles] compared exactly with the standard morphine which we have in the laboratory from the Bureau of Narcotics." Briner testified that the solute found in the State's exhibits "B", "C" and "D" "would come under Schedule II . . . which indicates opium or opiate, salt, compound, salt or derivative, I believe is the way it is stated." Spectrographic and gas chromatographic analyses of the capsules revealed that they contained a mixture of codeine and isobutylallyl barbituric acid, which is a derivative of barbituric acid.
Cross-examination of this witness indicated no quantitative analysis of any of the specimens had been undertaken, and that the fluid taken from the bottles had not been analyzed to determine whether the solute was morphine as a sulfate or as another salt or derivative.
At the close of the State's case-in-chief, the prosecuting attorney asked leave to amend both counts of the information. Count one of the original information charged that "Ronald Wiley and Keith Umfleet . . . did then and there . . . have in their joint possession a controlled substance, to-wit: three bottles of morphene sulphate [sic]". Count two charged that Wiley and Umfleet "did . . . have in their joint possession a controlled substance, to-wit: 50 capsules of Fiorinal". The State was permitted to amend count one of the information to read that defendant "did . . . have in his possession a controlled substance, to-wit: three bottles of a substance containing an opium compound, to-wit: morphine". Count two was amended to read that defendant "did . . . have in his possession a controlled substance, to-wit: fifty capsules of a substance containing a quantity of a derivative of
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...See State v. King, 380 S.W.2d 370, 374 (Mo.1964), cert. denied, 379 U.S. 979, 85 S.Ct. 681, 13 L.Ed.2d 569 (1965); State v. Umfleet, 538 S.W.2d 55, 58 (Mo.Ct.App.1976). Jones's appellate brief also relied on one decision of the United States Supreme Court, but Jones used it merely as persua......
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